Inquiries Bill [Lords - Standing Committee B

[Mr. Win Griffiths in the Chair]

Inquiries Bill [Lords]

Clause 5 - Setting-up date and terms of reference

Amendment moved [this day]: No. 36, in clause 5, page 2, line 21, at end insert—
‘(ia)consult, as appropriate, on the terms of reference.’.—[Mr. Carmichael.]

Win Griffiths: I remind the Committee that with this we are discussing amendment No. 38, in clause 5, page 2, line 28, at end insert—
‘and may consult any other person or bodies as he considers appropriate.’.

Alistair Carmichael: The Committee will recall that I was speaking as the whistle blew this morning. I do not know whether that entitles me to make another point, but I had just drawn to the Committee’s attention the fact that both amendments would give the Minister the opportunity to consult other parties on the terms of reference for any inquiry to be convened under the Bill. The intention is to widen the range of people who should be consulted.
I acknowledge that the Government conceded, properly, in the other place that consultation should take place between the Minister responsible and the person nominated as chairman. However, there is a great deal to be said for the consultation being as wide as the Minister can make it. This suggestion perhaps moves on from what the hon. Member for Huntingdon (Mr. Djanogly) said about openness and independence. If there is scope for consultation on the terms of the remit with interested parties beyond the chairman, it would be in the interests of the standing of the inquiry to carry that out. Currently, the consultation is fairly narrowly circumscribed by the Bill and it takes place purely with the chairman. Other parties would not have to be consulted on every occasion, but it would be sensible for the Minister to have the power to consult them.
The two amendments would have a broadly similar effect. Amendment No. 38 may sit more easily in the Bill, but there is no great distinction to be drawn between them. They represent a fairly modest extension of the Bill that I think will find favour with the Government, so I leave it to the Minister to choose which to accept.

Jonathan Djanogly: Amendment No. 36 specifies that before the setting-up date for the inquiry, as well as setting out the terms of reference and stating the number of panel members, the Minister must
“consult, as appropriate, on the terms of reference.”
However, as the Minister is already required to consult the chairman on the terms of reference, it could be argued that the amendment is superfluous. Also, we argued that the chairman should have to agree to the terms of reference, so the wording would not fit in with the way in which we look at the world in general. However, our agreement-type amendment was defeated, and if were to accept the need to consult the chairman, we could support the amendment for three reasons. First, it would reaffirm the importance of consulting the chairman. Secondly, it specifies that any consultation must take place before the setting-up date of the inquiry. Thirdly, it would allow the consultation of other appropriate persons or bodies before the inquiry began. Having said that, I shall make one small, pernickety point: it may be more desirable to position the new provision before, instead of after, subsection (1)(b)(i), because in its current position it does not reflect the chronology of events.
Amendment No. 38 is permissive, not prescriptive. It would allow the Minister to consult
“any other person or bodies as he considers appropriate”
before setting out or amending the terms of reference. As there is nothing to the contrary in the Bill, the Minister always had that option open to him, so the amendment would not change anything. It would, however, underline his option to consult elsewhere, and therefore might encourage him to do so, thereby having some, albeit negligible, advantage. Although the amendment is not objectionable per se, it could be argued that the express option to consult other people could distract from the obligation to consult the chairman. As we are arguing for more chairman involvement, we would want to avoid any amendment that would compromise what little influence the chairman currently possesses.

Christopher Leslie: The hon. Member for Huntingdon makes the arguments against amendments Nos. 36 and 38 for me. I was tempted to do otherwise, but now that he has convinced me, it occurs to me that I could give other reasons why we should not accept them.

Alistair Carmichael: Let us hear them because they are all crap!

Christopher Leslie: Luckily, I do not think that Hansard will catch the full flavour of the hon. Gentleman’s interjection—at least I hope that it does not.
I understand the rationale behind amendment No. 38, but it does not add anything because if Ministers consider such consultation is appropriate, they will consult, as is the current practice. I expect that they will generally consult, because it is important to get terms of reference that are workable and supported at the outset. Indeed, in the consultation paper “Effective Inquiries”, which we published last May, the  Government acknowledged that sometimes there would be a good case for allowing a period of time between the announcement of an inquiry, and the naming of a chairman and the settling of the terms of reference, and that during that period some consultation on the draft terms of reference with interested third parties might be appropriate. That view was supported in responses and the structure of clauses 4 and 5 reflect it.
However, it is important to remember that ultimately an inquiry has higher purposes than just involving those most directly related to it. It is not set up just to serve the interests of a particular person, but to serve the interests of the public at large. Those affected by distressing events, particularly the survivors and relatives of persons killed in an event that is subsequently being inquired into, will often have very strong views on the proposed form and conduct of an inquiry, including its panel membership and terms of reference. Although it is important to the success of an inquiry to listen and to try as far as possible to address some of those concerns, it is also important for the inquiry to restore public confidence in general and to provide a measure of closure. The Minister should take those views into account as far as possible, but ultimately he should proceed in the interests of wider public policy. We would do no good if we created an expectation among those involved that the inquiry must be conducted, and the terms of reference drawn up, exactly in accordance with the wishes of those most closely involved.
Amendment No. 36 is of slightly more concern because it would compel a Minister to consult. That returns us to the potential delay to the commencement of an inquiry and also possibly opens up the issue of inviting legal challenges at the start of an inquiry if there is a dispute about whether there had been sufficient consultation. That would not be desirable.
Similar amendments were tabled in another place and withdrawn, because concerns were expressed by a number of noble Lords that there could be a propensity to go to judicial review. The Government have examined the matter in detail and agree that carefully considered terms of reference are the key to a successful inquiry, and that the need to consult will vary from inquiry to inquiry. However, as I said in relation to a couple of other things, the final decision must rest with the Minister so that we can make progress as soon as possible with timely investigations.
I do not deny that there are good, sound sentiments behind the amendments, but it would not be appropriate to include them.

Alistair Carmichael: If that is what the Minister considers to be higher purposes, we are in more trouble than we realised. He suggested that the amendments would have the effect of compelling Ministers to consult. In fact, if he has regard to the terms of the amendments, he will see that amendment No. 36 states:
“consult, as appropriate, on the terms of reference.”
That, to my mind, leaves a great deal of discretion in the Minister’s hands. If the Minister were to decide, reasonably, that no consultation beyond that with the  chairman were appropriate, he would not be compelled to consult more widely. Similarly, amendment No. 38 makes that clear by using the phrase “may consult” rather than “must consult”. The may/must debate has exercised Committees ad nauseam in the past.
The Minister said something interesting earlier, and he is probably correct when he says that Ministers will consult. It is quite important that they do. The thinking behind the amendments, however, is that there may be circumstances in which, for his or her political aims, the Minister chooses not to consult and prays in aid of the legislation to say that that he has no power to consult beyond the chairman. The Minister will say, “Parliament has given me a power and a duty to consult the chairman, but nobody else. Although I wish to consult, I do not have the power to do so.”
Our amendments would close that bolthole for a Minister who did not want to consult for fear of hearing things that he or she might not wish to hear. That possibility is one of the higher purposes of the Bill. I am disappointed that the Minister does not agree with me. In all sincerity, however, this is not a matter on which to divide the Committee, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 ordered to stand part of the Bill.

Clause 6 - Minister’s duty to inform Parliament or Assembly

Jonathan Djanogly: I beg to move amendment No. 5, in clause 6, page 3, line 7, at end insert—
‘(d)an estimate of the likely cost of an inquiry’.

Win Griffiths: With this it will be convenient to discuss the following amendments: No. 39, in clause 18, page 8, line 34, leave out ‘unnecessary’ and insert ‘excessive’.
No. 20, in clause 18, page 8, line 34, at end add—
‘(4)In making any decision as to the procedure or conduct of an inquiry, the Chairman must within one month of the setting-up date publish an estimate of the likely cost of the inquiry.’.

Jonathan Djanogly: A major reason for drafting the Bill was to respond to the spiralling costs of public inquiries. The Government stated in their consultation paper, “Effective Inquiries”,
“that any new legislation on inquiries should include a statutory requirement on the chairman to have regard to ... costs to public funds”.
That is not adequately dealt with in the Bill. As it stands, the chairman merely has the obligation to have regard to the need to avoid any unnecessary cost. There is no mechanism to keep an inquiry’s costs in check, so, as promised on Second Reading, we have tabled amendments to address that deficiency.
It is a well known fact that excessive amounts have been spent on inquiries in recent years. The regulatory impact assessment estimated that more than £300 million has been spent since 1990, and that was only allowing £14 million for the Saville inquiry, estimates  for which now range from £155 million to £250 million. Viscount Goschen put those sums in context by reminding us that according to the figures produced by the noble and learned Lord Chancellor, it would cost £150 million to run the supreme court for 20 years. The figures are astounding and indefensible. The money has been spent and we must now ask how that exorbitant expenditure can be avoided.
Viscount Goschen made a convincing case for a solution. Without a budget, there can be no hope of proper cost control. Having an estimate on the public record at the outset would be a powerful tool in ensuring that the minds of the chairman and the commissioning Ministers were focused on costs. The Conservative Opposition continue to support that approach to enforce some kind of cost control on those who are setting up and running inquiries.
Amendment No. 5 would require the Minister setting up the inquiry to lay the likely cost before Parliament, thereby forcing him to take some responsibility for his decision to launch the inquiry and provide transparency in the budgeting process. It is appropriate that Parliament should know how much an inquiry will cost from the outset and provide some democratic legitimacy for the ministerial decision to spend taxpayers’ money in that way.

Anne Campbell: I have some sympathy with the hon. Gentleman because costs need to be kept under control, but I am a little puzzled about how it is possible to estimate the costs in a complex inquiry. Although no one wants costs to spiral out of control, the chairman may pursue lines of inquiry that lead to costs above the original estimates. I am worried that the amendments may curtail the inquiry unnecessarily and not lead to a proper conclusion.

Jonathan Djanogly: The hon. Lady makes a fair point. I will come to the importance of flexibility, which is reflected in our amendments.
Amendment No. 5 should be read with amendment No. 6, which would require an oral statement to the relevant Parliament or Assembly, as explained earlier by my hon. Friend the Member for North-East Hertfordshire (Mr. Heald). That would enable Parliament to have true involvement in the Minister’s decisions on setting up the inquiry—in this case, allowing debate about whether the likely costs of an inquiry are appropriate in the circumstances. We doubt that any Assembly would accept £250 million as an appropriate budget to spend on an inquiry.
Once the inquiry has been set up, the Minister will have limited involvement in running the inquiry; he will not and should not have a final say about how and where the funds are spent. That would affect the inquiry’s independence, which is addressed by amendments Nos. 30 and 31. Therefore, any amendments dealing with the inquiry’s costs must also consider the chairman’s involvement in spending. Amendment No. 20 addresses that very issue. It  requires the chairman, when taking a decision about the procedure or conduct of an inquiry, to publish an estimate of the likely cost of the inquiry within one month of the setting-up date. That would force the chairman to consider carefully the possible costs to be incurred and the most appropriate way to approach the tasks that he has been set. It would provide accountability of the chairman’s expenditure and, through public scrutiny and legitimate expectations, put pressure on the chairman to keep within the published budget.
The amendments would ensure that a budget was set at the outset by both the Minister and the chairman. It would then be open to Parliament and the public to object to excessive forecasts and scrutinise expenditure over and above the expected budget. I should point out—this relates to the point made by the hon. Member for Cambridge (Mrs. Campbell)—that the amendments do not impose a cap on an inquiry’s expenditure. We recognise that inquiries require the flexibility to follow new leads of evidence and interview further witnesses when appropriate. However, Ministers and chairmen running inquiries should not be given blank cheques to set unlimited amounts on unspecified inquiry costs.

Anne Campbell: What would happen if it became obvious that an inquiry would exceed the estimated amount that the Minister had declared at its initial stages? Would the inquiry have to be abandoned or would the Minister have to return to the House and make a further statement? Will the hon. Gentleman explain a little more?

Jonathan Djanogly: Although we are not arguing for caps—it is not a matter of coming back for more—it is entirely appropriate that at the initial stages of the inquiry the chairman and the Minister, working together, make an assessment of the likely costs. For example, when a court case is started, one of the questions that parties ask their lawyers is how much it will cost. Just because it is a public inquiry does not mean that it should have a blank cheque.

Alistair Carmichael: In drawing the parallel with a solicitor advising a client, the hon. Gentleman raises an important point. In my experience as a solicitor, what often happens is that clients say, “If that’s what it’s going to cost, it’s just not worth it. I won’t go ahead.” Is that what the hon. Gentleman is suggesting is a desirable basis on which to conduct public inquiries?

Jonathan Djanogly: No, I am not suggesting that. I am just saying that there must be some financial discipline in the process, as the amendment proposes.
It is recognised that setting budgets is not an easy task—in the private sector or in the public sector. Lord Fraser of Carmyllie noted that
“it is very difficult to give an absolutely accurate forecast of the cost of an inquiry, not least because those who have to chair it will not yet have decided whether they will allow any particular party to be represented ... But ... when the Minister has decided to set up an inquiry and has discussed it with the chairman, there must be at least some appreciation, understanding or calculation of who will be allowed to attend ... Parliament should be given the  opportunity to know what the inquiry will cost at the outset. If there can be only an estimate, that is the best that can be done.”—[Official Report, House of Lords, 7 February 2005; Vol. 669, c. 641.]
We fully support the noble Lord in his commentary.
 Setting a budget is difficult and challenging in all circumstances, but particularly where there are uncertainties, as is the case for any inquiry. However, setting a budget is a necessary exercise that is routinely carried out by responsible individuals, companies and Administrations. It is unrealistic to argue that an estimate cannot be made for an inquiry. Yes, it would be difficult, but the difficulty of the task is not a good reason to waste—potentially—millions of taxpayers’ pounds.
That view is supported by the Public Administration Committee, which included in the core recommendations of its report “Government by Inquiry” that
 “Ministers should announce a broad budget fairly early on at the start of an inquiry. Any increases over the announced limits would then need to be publicly explained.”
It also referred to the need to
“Set budget limits, publish costs and explain overruns”
in its proposed principles of good inquiry practice.

Mike Hall: If I follow the hon. Gentleman’s argument correctly, he is saying that we should put estimates on the cost of public inquiries and that, although there would be no legal penalty for exceeding the estimate, those conducting the inquiry would have to explain the reasons to the general public. Does he not think that it might impede the process of the public inquiry if they were distracted from their important work in order to explain to a wider public why they overspent the budget?

Jonathan Djanogly: No, I do not. It is quite acceptable and proper that, if an original estimate is given, a Minister should have to stand at the Dispatch Box and explain why the costs have trebled or whatever.

Mike Hall: The Minister is not responsible for conducting the inquiry. The chairman or chairwoman would be the person responsible, so would it not be their responsibility to explain, and would that not distract them from the work that they had been asked to do?

Jonathan Djanogly: I only wish the hon. Gentleman’s comment were correct. He will have heard me and other hon. Members repeatedly saying how the Government have much too much to say about how inquiries are conducted. Let us say for the moment that he is correct. That still does not mean that the Government should not have to be responsible for explaining why costs have overrun. If the chairman has to explain that with the Government, that is what he will have to do. These are basic accounting principles. There is no reason why people should not have an explanation when public money costs significantly overrun.

Mike Hall: I am sorry to pursue the hon. Gentleman on this point, but is he really saying that if a public inquiry overruns its estimated costs, it is the  Government’s fault and so the Government must explain? That is what he has just told the Committee. He needs to get his thinking a little more clear on this point.

Jonathan Djanogly: I did not say that at all, as the record will show. If costs have overrun, they will have done so for a reason. That should be explained.

Mike Hall: Who by?

Jonathan Djanogly: By the Minister and the chairman.

Mike Hall: It is not the Minister’s fault.

Win Griffiths: Order.

Jonathan Djanogly: If I may, I will move on.
We the Conservative Opposition believe that the Government have failed to introduce statutory controls on the cost of inquiries, despite the overwhelming evidence in favour of such procedure, including in their own consultation paper. It would be a missed opportunity if we did not seize this timely occasion to address the issue of inquiries’ costs. On Third Reading in another place, the Government seemed to be in favour of introducing some form of controls on costs, at least in principle. Since then they have gone rather quiet on the issue. We therefore hope that they have now had time to consider the issue further and are about to announce some sensible new proposals.

Alistair Carmichael: We have gone from higher principles to bean counting in one small step and with effortless ease. I feel exceptionally uneasy about the hon. Gentleman’s proposals. He asked how we can best put a cap on costs of inquiries, such as the Saville inquiry, which seems to be in vogue in today’s debate. Its costs would have been reduced greatly if it had been held 20 or 25 years ago. The reason why many inquiries run to such length and expense is often that the culprit of the inquiry has refused it for so long. The Saville inquiry was always going to have to be held eventually. I am convinced that a good part of the reason why we are in such a situation is that we have allowed matters to run for so long before we gave in to the need for a public inquiry.
I want to consider the practical consequences of the amendments tabled by the Conservative party before I speak briefly about amendment No. 39. A Minister would have to go to the House or make a written statement about the estimated costs of the inquiry. That presupposes all sorts of things, such as the Minister himself or herself knowing exactly what different witnesses in the inquiry will say, how long it will take them to say it, what costs will be involved, who will be legally aided and who will be financing their own representation. I do not understand how that can feasibly and practically be carried out.
Even if such procedure were carried out, what happens if the estimated costs of the inquiry were exceeded by the costs of the inquiry in practice? Presumably, as the hon. Member for Weaver Vale (Mr. Hall) said, the Minister would have to answer for that. He would have to answer for something that was  not his doing in the first place. Moreover, it ought not be something for which he should be answerable. If the inquiry is to be independent of the Government—the crux of everything that the hon. Member for Huntingdon said this morning—the Minister should not have any say in the costs of it. I feel exceptionally uneasy about the fact that the practical consequences of what the hon. Gentleman said are unworkable in parliamentary terms.
Having dealt with several inquiries in a previous life, I shall draw on my experience. As a procurator fiscal deputy and a solicitor in private practice in Scotland, I have dealt with fatal accident inquiries and inquiries under the Merchant Shipping Act 1995. It is impossible to estimate how long inquiries will last. Invariably, witnesses say something slightly different in the witness box from what they say in their precognition, the consequences of which can be dramatic in an inquiry that was intended originally to last perhaps for a few days, but which could run to weeks. Indeed, certain inquiries quite properly ought to run to weeks. The idea that a cap can be put on such proceedings is wrong.
I deliberately use the term “putting a cap on” costs because that would be the inevitable consequence of the direction in which the hon. Member for Huntingdon wants to take us. If, as he said, the financial discipline must be meaningful, there must be a cap, otherwise there is no point in it. To carry out an academic exercise into the probable costs, but then to wait and see what they are is a waste of parliamentary time. It is also an unnecessary constraint on, and a threat to, the independence of the inquiry.
Having said all that, there is clearly legitimate public worry about the way in which some inquiries can run on. It is right that we consider ways in which to deal with that without striking at the independence of the inquiry, with which the amendments tabled by the hon. Member for Huntingdon are concerned.

Jonathan Djanogly: Such as?

Alistair Carmichael: I am just coming to that. The hon. Gentleman referred to Lord Fraser of Carmyllie, who knows a thing or two about inquiries. He presided over the inquiry into the running of the construction of the Scottish Parliament—I would not have wanted to estimate the cost of that at the start. Lord Fraser did an exceptionally good job in that inquiry. He did not order things in such a way as to incur any unnecessary or excessive expense, but it would have been difficult to estimate that expense at the start. The terms of amendment No. 39, tabled by my hon. Friend the Member for North Cornwall (Mr. Tyler) and I, relate to that matter. We seek to replace the word “unnecessary” with “excessive”, so that clause 18(3) would then place a duty on the chairman to
“act with fairness and with regard also to the need to avoid any”—
excessive—
“costs.”
One would hope that the chairman would always act in a way that would avoid unnecessary costs.
A duty is placed on the chairman to have regard to the costs that are involved; he will not be dictated to in that respect by the Minister or even by Parliament, but he has to be mindful of the consequences of any decision that he takes. I believe that that is as far as Parliament ought to go and reasonably can be expected to go. It is right that that duty should exist, but in a hierarchy of duties that are placed on the chairman and, indeed, on the Minister, it must come somewhere below the duty to act fairly and independently of the Government.

Christopher Leslie: I shall first take amendments Nos. 5 and 20, which deal with the requirement for estimates to be made in advance of the costs of an inquiry. We have significant concerns about the amendments.
Amendment No. 20 would require the chairman to give a figure within one month of establishing the proceedings. I have heard the concerns of the hon. Member for Orkney and Shetland, and we also feel that there are many good reasons why the amendments should not be included in the Bill. It does not strike me as a good idea that we should have an inquiry into the costs before the inquiry gets under way, although I do not say that we cannot find better ways of encouraging good, sound budgetary management of costs as the inquiry proceeds.
It is the chairman’s job to plan the inquiry. To require the Minister to give a broad figure right at the start, ahead of any assessment by the chairman, could have the effect of confining the inquiry before the chairman has even considered the issues. I gather that Lord Laming, during his contribution to the debate in the other place, mentioned that sometimes it can take a significant period for the inquiry really to understand the true scale of the task before it. In the case of his inquiry into the death of Victoria Climbié, he said that even one month in, the inquiry did not have a full picture of how long proceedings would take. We must therefore be careful about drawing up an arbitrary time scale, even of a month, never mind trying to make precise predictions in advance.
Even if one has a requirement for an estimate, that is not the same thing as a requirement to avoid unnecessary cost, which is provided for in clause 18. Neither amendment No. 5 nor amendment No. 20 would provide any control of the cost; other measures included in the Bill would do that better. In our view, it is more important to encourage budgeting throughout the inquiry, in close association with the sponsoring Department. There is much that we could do with the procedure rules to assist in that. For instance, in another place, my noble Friend Baroness Ashton of Upholland made a commitment to include the issue of cost estimates when there is consultation on the secondary legislation, which will set those out.
 There are dangers in producing arbitrary estimates. Anyone who has done building work knows that estimates are not the same as the actual costs involved. We can see that there might be benefits in publishing estimates at appropriate stages, so that the inquiry can  be held to account, but that must be done when the estimates are meaningful. I am concerned that the amendments might require Ministers in future Administrations to pluck figures from the air at arbitrary times, which would not help anyone.
On amendment No. 39, I do not disagree with the gist of what was said, but on balance, having considered the proposal to use the phrase “excessive cost”, we believe that the concept in the Bill of avoiding “any unnecessary cost” is preferable, and I hope to give a few reasons why. The word “unnecessary” should be interpreted in the context of the inquiry; something will be necessary if it assists the inquiry in fulfilling its terms of reference. There is a great deal of similarity between the clause as it stands and the amendment. For instance, spending £15 when £10 would do might be both unnecessary and excessive. There is a subtle difference, however. The clause as drafted requires the chairman to think about the management of the inquiry in a more fundamental way, which is important. It requires him to think about what actions are necessary to achieve the aims of the inquiry, rather than simply to avoid paying excessive amounts for the actions that he takes. For example, it might not be excessive to pay a moderate fee for legal representation for three different groups with similar interests, but it might be unnecessary because they could assist the inquiry just as well if they shared representation.
I assure hon. Members that the clause will in no way hinder the inquiry’s ability to get to the facts and do its job. If something is necessary, it should be done and paid for. We hope to strike the right balance and not be tipped too far in the wrong direction by some of the official Opposition’s amendments. With those comments and for those reasons, I hope that the amendment will be withdrawn.

Jonathan Djanogly: The hon. Member for Orkney and Shetland (Mr. Carmichael) said that I had suggested a cap. That is simply not correct. Certainly our amendments do not suggest a cap in any way.

Alistair Carmichael: In fact, I quite explicitly said that a cap was an inevitable consequence of the amendments that the hon. Gentleman proposes. Does he not see that if what he speaks of as financial discipline is to have any meaning, we would eventually end up with a cap?

Jonathan Djanogly: The hon. Gentleman said that in his second round of comments. Initially, he said that we were suggesting a cap, but I am pleased that he has made that clear.
The hon. Gentleman then said that he did not know how estimates could be made, although when he discussed the private sector he admitted quite plainly that estimates are made all the time. The Liberal Democrats and the Government seem to be saying that where taxpayers’ money is concerned, different bases apply and estimates are not appropriate. Conservative Members maintain that it is fully appropriate that the Minister who calls for the inquiry should be able to give legitimacy to the costs involved in it and should be responsible for explaining to Parliament variations to  the estimates. Having said that, I do not intend to press the amendments to a vote. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 ordered to stand part of the Bill.

Clause 7 - Inquiries where ministerial conduct in issue

Jonathan Djanogly: I beg to move amendment No. 7, in clause 7, page 3, line 17, leave out
‘may, if he sees fit,’ and insert ‘must’.

Win Griffiths: With this it will be convenient to discuss amendment No. 8, in clause 7, page 3, leave out line 22.

Jonathan Djanogly: These, too, are important amendments. We have been witnessing the Government repeatedly taking advantage of their majority in this place to gnaw away at Parliament’s influence over the Executive. There is concern that, should that pattern continue, the checks and balances underlying our very constitution could be threatened and chipped away. Unfortunately, this Bill is no exception to the trend. Earlier, my hon. Friend the Member for North-East Hertfordshire spoke eloquently of the overreaching powers of the Government that are peppered throughout the Bill. In the Inquiries Bill, the most critical appropriation of power by the Government to the detriment of Parliament relates to ministerial misconduct, which is the subject of the amendments. Public inquiries into ministerial misconduct lie at the heart of Parliament’s role of ensuring ministerial responsibility. In its report, the Treasury and Civil Service Committee noted that the system of ministerial accountability depended upon
“two vital elements: clarity about who can be held to account and held responsible when things go wrong; and confidence that Parliament is able to gain the accurate information required to hold the Executive to account and to ascertain where responsibility lies”.
Inquiries enable Parliament to obtain that essential information, which should in turn clarify who should be held to account. However, despite the clear need for parliamentary involvement, the Government seem to be shunning it at every stage.

Anne Campbell: The report of the Select Committee on Public Administration does not talk about misconduct. Instead, it recommends that the ombudsman should investigate alleged breaches of the ministerial code. The proposal is rather unfortunate because it refers to ministerial misconduct and at the  same time causes the Minister to bring the inquiry. The amendments would force the Minister to do rather more than he would otherwise. Would a Budd inquiry happen if the amendments became part of the Bill?

Jonathan Djanogly: I will come to that report, so I ask the hon. Lady to hold on.
In the other place, the Government consistently fought against amendments to improve the constitutional balance between the two organs of state. Despite the Government’s resistance, the other place secured an amendment on Division, which allows the possibility of some parliamentary involvement. The compromise reached between the Conservative and Liberal Democrat peers provides the option for a Minister to move a motion before the relevant Parliament or Assembly, as is embodied in clause 7.
However, even the permissive, non-obligatory provision seems too restrictive for the Government. Amendment No. 32, which has not been selected, is presumably to be dealt with in the clause stand part procedure.
Mr. Leslieindicated assent.

Jonathan Djanogly: The amendment would have deleted clause 7, removing all statutory footing for parliamentary public inquiries into ministerial misconduct. That is worrying, not only because of the lack of parliamentary involvement but also for the excessive discretionary powers entrusted to the Ministers. As Lord Kingsland noted
“Under this Bill, it is the Minister who decides whether the inquiry will be established or not; it is the Minister who decides who shall sit on that inquiry; and it is the Minister who decides what the terms of reference of that inquiry shall be. How can that conceivably be appropriate where the relevant conduct is that of another Minister or even the department of the Minister in question?”—[Official Report, House of Lords, 9 December 2004; Vol. 667, c.1008.]
Our answer must be that it will never be appropriate and must be addressed by the Committee. In a later debate, Lord Kingsland stated:
 “It is plainly ludicrous . . . that a Minister should investigate his own conduct or that of any other Minister who is in the Government of the day.”
He continued:
 “A Minister is highly unlikely to initiate a procedure to investigate himself; and most unlikely to initiate a procedure to investigate his Cabinet colleagues.”—[Official Report, House of Lords, 18 January 2005; Vol. 668, c. GC192–203.]
It is clear that the Minister will have a strong interest in an inquiry not going ahead. There will always be the risk of ministerial, departmental or governmental embarrassment or, as is often the case, the death of a political career. Indeed, the very existence of the inquiry would cast doubt on a Minister’s credibility and reduce public confidence. Given the extensive powers granted to the Minister in setting up, running  and concluding an inquiry, the power to cover up ministerial misdemeanours would clearly be open to abuse. However, the Government do not, or will not, recognise that risk. In the other place, Baroness Ashton made her view clear that the
 “Prime Minister is the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards.”—[Official Report, House of Lords, 28 February 2005; Vol. 670, c. 17.]
The Conservative Opposition strongly believe that that will not suffice. I must refer again to Lord Kingsland, who succinctly described the defects of investigating ministerial conduct through exercising the ministerial code.
Lord Kingsland described
“a situation where inquiries into ministerial demeanours, that go to the heart of government, are subject simply to the prerogative decision of the Prime Minister of the day who sets up an inquiry which seems to him to best suit the political circumstances. These are bespoke inquiries. They do not respect any statutory or parliamentary procedure. The chairman is named, certain powers are created and the chairman gets on with what he has to get on with under those powers. In my submission, to leave the way in which a Minister is made accountable to Parliament solely to the prerogative powers of the Prime Minister of the day is wholly wrong.”—[Official Report, House of Lords, 18 January 2005; Vol. 668, c. 208.]
That view is not only held by the Conservative Opposition; it has received widespread support. For example, over the past four years four reports by two separate bodies have criticised the Prime Minister’s ability to investigate under the ministerial code. Each report has been dismissed and their recommendations have been ignored by the Government.
First, in a 2001 report, the Public Administration Committee recommended, as the hon. Member for Cambridge said, that the parliamentary ombudsman should be given a policing role in relation to the ministerial code. Secondly, the Committee on Standards in Public Life recommended a new investigation mechanism for alleged breaches of the code in its ninth report of 2003. Among other things, that report recommended that two or three individuals be publicly nominated by the Prime Minister following consultation with the Leader of the Opposition. Those individuals would be available to investigate any alleged breach of the ministerial code. However, the Government rejected that proposal saying:
“it is for the Prime Minister to decide on the course of action required on a case-by-case basis”.
Thirdly, in its recent report, “Government by Inquiry”, the Public Administration Committee stated:
 “In light of recent events we believe that the time is now right for the Government to reconsider its view that it would be undesirable to fetter the Prime Minister’s freedom to decide how individual cases should be handled. Accordingly we recommend that the parliamentary ombudsman should be empowered to investigate alleged breaches of the ministerial code and other allegations about the conduct of individual Ministers.”
As the Committee will be aware, the Select Committee also took that opportunity to recommend several  other proposals to address the same issues. In their response to that report, the Government repeated their claim that
“the Prime Minister needs to retain the right to decide whether an investigation is needed.”
In commenting on the recent Budd inquiry into the behaviour of the right hon. Member for Sheffield, Brightside (Mr. Blunkett), the Wicks Committee expressed its concern that no appropriate investigation mechanism existed and called for changes to the law to ensure clarity, transparency, accountability and public trust. Are the Government really so arrogant that they can ignore the overwhelming consensus of various reports, common sense and the very constitution on which our parliamentary system is based? I fear that that must be so, as the Inquiries Bill presents the perfect opportunity to revise the process for investigations into ministerial misconduct. The Government are not only ignoring that opportunity but seeking to undo the amendment secured by the other place.
In its present form, the Bill does not sufficiently address the need for parliamentary involvement, but Conservative amendments Nos. 7 and 8 would ensure that Parliament reclaimed its role and the correct balance of powers was restored. The Public Administration Committee showed similar concerns in its report, “Government by Inquiry”, in which it stated:
 “We are deeply concerned that the Government’s Inquiries Bill threatens the last remaining role for Parliament in the inquiry process. Nonetheless, it also provides an opportunity to update the current provision contained in the 1921 Act to reflect our recommendations for parliamentary involvement. To achieve this we propose that clause 1 should be amended by means of an additional subclause to provide that, where the public concern relates to the conduct, actions or inactions of government ... the Minister will cause an inquiry to be called on the basis of a resolution of both Houses of Parliament.”
Unfortunately, instead of seizing that opportunity, the Government seek to undo the good work that the other place achieved on Third Reading.
I remind hon. Members that the amendment secured by the other place allows a motion to be moved, at the Minister’s discretion, if ministerial conduct is in question. We believe that the motion for a Parliamentary resolution should be moved each and every time the events relate to alleged ministerial misconduct. That is the only way of ensuring that inquiries into Ministers’ actions receive full democratic legitimacy.
There was concern in the other place that all inquiries, in some way or another, could relate to Ministerial misconduct, a question that often cannot be answered until the inquiry is up and running. However, clause 7 addresses that concern, as it only applies to those inquiries that relate “wholly or primarily” to alleged ministerial misconduct. As such, any latent ministerial involvement would not be relevant at the time the clause came into play. Once the inquiry is up and running, the Minister would have limited involvement in its processes, particularly if our earlier amendments had been accepted.
I underline the need for parliamentary involvement in public inquiries, and the absolute requirement for it when the inquiry relates to alleged Ministerial misconduct. We cannot allow the current imbalance of powers between Parliament and the Executive to shift further to the latter’s benefit. We currently have no satisfactory procedure for investigating ministerial conduct, a situation that could be abused.

Paul Tyler: My hon. Friend the Member for Orkney and Shetland and I support the amendments because the clause is central to public confidence in the Bill. As has been said, the clause has received the support of the other place as the result of cross-party anxiety that the Bill would otherwise not be sufficiently rigorous in its application.
I remind the Committee that the clause derives from the report “Government by Inquiry” by the Public Administration Committee which was published just before the Report stage in the Lords. That Committee has a Government majority and is chaired by a very distinguished parliamentarian, the hon. Member for Cannock Chase (Tony Wright), who has given a great deal of thought to these issues.
Paragraph 178 of the report states:
 “Accordingly we recommend that Clause 1 should be amended to provide for parliamentary resolutions where the events causing public concern which may have occurred involve the conduct of ministers. We further recommend that the procedural framework for an inquiry called under this new sub-clause which we have described should be the subject of a Parliamentary Resolution once the Bill has passed into law.”
The hon. Member for Cambridge was wrong. There was a recommendation in that report. It is very specific and I invite her to look at it again.

Anne Campbell: My point was that nowhere in the report does it refer to ministerial misconduct. It refers to ministerial conduct, which is a completely different matter when we look at how policy is conducted. It is completely different from the kind of inquiry that was conducted by Sir Alan Budd into potential ministerial misconduct, which the Select Committee firmly believes should be adjudicated on by the ombudsman and not by an inquiry.

Paul Tyler: I am full of admiration for the hon. Lady who, like me, is not trained as a lawyer. To some extent, I think that that argument is a matter of semantics. Of course, there are grey areas between good conduct and misconduct. We need some provision to deal with the specific circumstances to which the Select Committee drew attention.
 I shall give a couple of examples from my own experience. I was the spokesman for agriculture and rural affairs during the last days of the Major Government. The conduct of Ministers, whether it was misconduct or misapplied judgment, became a matter of judgment itself, but it was clear that there needed to be an inquiry into the BSE disaster. Yet Ministers were able to avoid that and no inquiry took place. In the run-up to water privatisation, in my constituency in 1988, before I was elected—it might have been part of the reason for my election—the Government of the day refused an inquiry into the poisoning of 20,000  people by aluminium sulphate that had been added to the water supply in an inappropriate way at the Lowermoor water treatment works. An inquiry was not set up until the Labour Government came into power.
In both circumstances, playing games to determine whether the Government’s decision was misconduct or lacking in judgment is unimportant. The point is that there was ministerial involvement in both appalling episodes and there was not a sufficiently effective and rigorous mechanism for Parliament to be involved in the establishment of the appropriate inquiry. All clause 7, strengthened by the amendments, would do is to make such a provision in a sufficiently robust way. That was why, as a direct result of the recommendation of the Public Administration Committee report, Lord Kingsland and our noble Friend, Lord Goodhart, tabled an amendment in the other place. After debate, it was withdrawn because it was not considered to be sufficiently effective. Indeed, that might be because the specific need for amendments Nos. 7 and 8 was not anticipated.
A revised amendment was tabled on Third Reading in the other place which was again supported by the noble Lords. It received cross-party support, as well as from Cross-Bench peers. It was accepted and its provisions are set out in the Bill. The measure needs a little strengthening, which is why we support the amendments. I assume that the Minister will resist them, but I hope that he will give us a full explanation of why he wants to remove the entire clause.
It is absolutely axiomatic that, when the conduct of a Minister of the Crown is in question, Parliament plays a key role in assessing the situation. It is not good enough for a Minister simply to make a statement. He should come before Parliament, place a motion on the Order Paper and seek parliamentary approval. That would give legitimacy to the approval of the inquiry into a particular set of circumstances. Without such a provision, the Bill will be gravely weakened.

Win Griffiths: Order. It has been a bizarre experience for me as a Chairman to hear the Committee debate amendments when there will be a move to remove the clause to which they apply. Perhaps the Minister could put his arguments for clause 7 not being in the Bill, so that our proceedings are speeded up a little.

Christopher Leslie: It is an excellent idea, Mr. Griffiths, and, with your permission, I shall do exactly that.
There are specific reasons to oppose amendments Nos. 7 and 8, but it will help the Committee in general if I set in context some of our worries about the clause. I understand the rationale behind it, but it would have several perverse consequences. It should be removed for many reasons, not least because it is unnecessary.
Let us consider some of the basics. My hon. Friend the Member for Cambridge referred to the difference between ministerial misconduct and ministerial conduct, and they could have extremely wide definitions. It could mean the personal, individual acts  of a Minister in his or her day-to-day work or it could include the conduct of a Minister in the smooth administration of his or her Department as a whole. We could end up in big arguments about the scope of conduct or misconduct inquiries. It could be argued that almost anything that the Government do could ultimately be classed as relating to ministerial conduct. If it was as undefined or as widely defined as that, there would be a number of problems.
I am worried, for instance, that there would be pressure to apply the resolution procedure to a far greater number of inquiries than the noble Lords intended when they amended the Bill. That could lead to false expectations. Inquiries often cover emotive and highly sensitive issues. Certain people may see the Government as wholly or primarily to blame for what has happened and may argue that Ministers have committed misconduct even though their actions have not constituted anything like what we would regard as misconduct. That might not only sour the process of getting the inquiry set up and under way, but lead to legal challenge. For instance, certain individuals might think that the parliamentary resolution procedure under the misconduct arrangements is not being properly pursued. Legal challenges through the courts because an inquiry was set up without a resolution would be undesirable, not least because of the delays and complications that they would add. That is why I am particularly worried about the amendments.
There are perversities about clause 7 in general. Not only do these complicate the legislative structure in the Bill; it could be argued that there might be a disincentive for future Ministers to use the legislation and therefore the provision might diminish Parliament’s involvement in inquiries. To avoid the inevitable argument and confusion, future Ministers might consider it better always to set up non-statutory inquiries, outside the procedures in the legislation. That would be particularly difficult if we accepted amendments Nos. 7 and 8. There could be great difficulties if future Ministers, perhaps in another Administration, did not want to go through those parliamentary procedures and were therefore more likely to set up non-statutory inquiries.
There are other concerns. We have touched on some of the concerns expressed by the hon. Member for Huntingdon that the ministerial code of conduct is not the best framework to safeguard good ministerial conduct. We believe, however, that the code is the best framework. It sets out the standards that the Prime Minister expects Ministers to uphold, and the Prime Minister’s foreword makes it clear that he expects all Ministers to work within the letter and spirit of the code and to undertake their official duties in a way that upholds the highest standards of propriety. Section 1 of the code makes it clear that Ministers remain in office only so long as they retain the confidence of the Prime Minister. Of course, implicit in that is the confidence of Parliament too, because in theory Parliament already has the power, if it so wishes, to censure Ministers in relation to particular issues.
Hon. Members seem to have the impression that Parliament is constrained in what it can do unless something is in statute. That is not the case. With Parliament being sovereign, it has the ability to act should it wish to do so. As I said, section 1 of the ministerial code of conduct makes it clear that Ministers remain in office only as long as they retain the confidence of the Prime Minister, who is the ultimate judge of the standards of behaviour expected of a Minister. It is for the Prime Minister to investigate and decide on misconduct. It is not, in the first instance, for Parliament to do so, although there is nothing preventing Parliament from doing so if it so wishes, because ultimately all Ministers, as I know, are routinely and rigorously held to account in Parliament.
It follows that it is for the Prime Minister to decide whether an allegation relating to ministerial misconduct under the code needs to be investigated, and the means by which any such investigation should be conducted. He would need to be able to act swiftly and to take quick decisions on ministerial misconduct. The public would expect the Prime Minister to do that. He needs the ability to act quickly but not necessarily to have this parliamentary process in front of him.
I think that the Prime Minister’s oversight is best, and that view has been supported by others. In April 2003, the Committee on Standards in Public Life agreed in its ninth report that it should continue to be for the Prime Minister to decide whether an investigation is needed. The Government continue to believe that that is right and is the best approach. To accept the amendments would lead to a blurring of the lines of accountability between Parliament and the Executive. Parliament is, of course, supreme, but the Executive must be able to act and the Prime Minister must be able to take swift action in relation to the conduct of his or her Ministers.
There is another worry about the parliamentary resolution process occurring before an inquiry into ministerial conduct is set up. In practice, we know what would happen; there would be a lot of prejudgment of what did or did not happen even before the inquiry established the facts of the case. In addition, there are other reasons why we need to worry about clause 7 as it stands.
There are dangers in amendments Nos. 7 and 8; in particular, they could set precedents for inquiries that will always be on the borders of whether they concern ministerial conduct. For example, many would argue that the handling of the foot and mouth and BSE outbreaks were about ministerial misconduct. If there were a statutory requirement for resolutions, Ministers would come under considerable pressure to use that for inquiries, even if it was not, strictly speaking, required. Each inquiry would then set a precedent and would increase the pressure for Ministers to seek resolutions on similar inquiries in  future. One can therefore see that the set of inquiries covered by the clause would grow wider and wider. We would then move away from the concept of ministerial inquiry, which I believe to be the proper purpose of the Bill.
Although I understand what many have argued for in clause 7, it has perverse consequences, it is unnecessary because Parliament already has a number of other powers, and it has a number of undesirable aspects, as I have mentioned. I hope that the Committee will resist amendments Nos. 7 and 8 and clause 7, so that it will not stand part of the Bill.

Alistair Carmichael: I shall not detain the Committee long. It was not my intention to speak in this part of the debate, but the Minister has raised a number of further issues. This is another area where the fundamental difference between the Government and the Opposition concerns who has the power. It seems to me that the Government, for reasons that one might understand although not necessarily approve of, are quite determined that the power will rest with them. As my hon. Friend the Member for North Cornwall said, it is appropriate that Parliament should be the forum to hold the power in this case.
The Minister made an interesting point when he spoke about concern for challenges arising from the parliamentary resolution procedure. I do not see how that would necessarily be so, given that the inquiry is not invalidated by the absence of such a resolution. I cannot think of the terms in which any challenge would be framed, because the question of whether a parliamentary resolution is introduced does not seem to have any particular bearing on the matter.

Christopher Leslie: It comes down to the definition of ministerial misconduct and whether, for instance, a non-statutory inquiry, going about its business, would be challenged by someone who felt that it generally concerned ministerial conduct and did not have those parliamentary resolutions, thus inhibiting the inquiry in its work. There are a number of ways in which legal challenge could be opened up by such a requirement.

Alistair Carmichael: I am not sure that the Minister has covered the ground. I do not see how the presence or absence of a parliamentary resolution would be justiciable under judicial review, which would presumably be the mechanism for challenging the decision. In any event, to take the Minister’s argument at its highest, if there is merit in it, it is a very compelling argument in favour of amendments Nos. 7 and 8, because by removing the discretion, one removes the option for challenge, as the option for challenge could only be on the basis of the exercise of the discretion.
The question of misconduct really is one of angels dancing on the head of a pin. I cannot imagine why we would want inquiries into ministerial conduct unless  there was prima facie misconduct. However, there may be something there that clever people have thought of and I have missed.

Anne Campbell: In answer to an earlier question, I should like to reassure the Committee that I am not a lawyer—in fact, I am a statistician, if that makes any difference.
I return to the argument about ministerial conduct and misconduct, because there are differences between those things. Ministerial conduct, which relates to personal misconduct by a Minister, should rightly be investigated under the ministerial code of conduct. It is time for the Government to reconsider their view that it is undesirable to fetter the Prime Minister’s freedom to decide how individual cases should be handled and to put such cases before the parliamentary ombudsman. However, I will not test your patience, Mr. Griffiths, because that is not what the clause is about.
What Select Committee members and I mean by ministerial conduct is the direction of Government policy, which is a matter for Parliament. One reason why Parliament exists is to hold Ministers to account over their policies. I can think of several occasions in recent years when I would have wanted to question the direction of Government policy, and a parliamentary inquiry might be a way to do that.

Jonathan Djanogly: I am not sure where the hon. Lady is coming from when she refers to ministerial conduct or misconduct, as she has done on several occasions. If this issue is of “public importance”, presumably it would not matter whether there was ministerial conduct or misconduct, because it would be covered by her amendment.

Anne Campbell: The Select Committee was clear that ministerial misconduct should be investigated by the ombudsman, not by a parliamentary inquiry. By using the words “public importance”, the Select Committee intended to refer to the direction and continuance of Government policy.
Returning to my main objections, about which I spoke on Second Reading, the clause gives the Minister discretion on whether to hold a public inquiry into his or her own misconduct. That is a rather strange thing to ask a Minister to do. The clause does not make sense and I shall vote to revoke it. I cannot support the hon. Gentleman’s amendment.

Jonathan Djanogly: As the hon. Member for North Cornwall said earlier, clause 7 is important, as is the power that it gives to Parliament, and it is central to public confidence in the Bill.
I have explained why we believe that the clause is necessary and I shall not run through the arguments again. Although I am obliged that Liberal Democrat Members supported the amendments, which are  necessary to improve the clause, I shall not request a Division, because we now face the much more serious issue, which has arisen from the Government amendments, of the Minister wishing to strike out the entire clause. I shall ask for a Division on clause 7 stand part. After having listened to the Minister, I am even more concerned that not only do the Government intend to strike out the compromise offered by the noble Lords, they are not offering any alternative—the one proposed by the Public Administration Committee or any other.
 The Minister’s concern about legal challenges was weak. He did not explain what the “perversities” were, let alone provide for any alternative. For those reasons, I will press clause 7 stand part to a Division. However, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Motion made, and Question put, That the clause stand part of the Bill:—

The Committee divided:  Ayes 3, Noes 6.

NOES

Question accordingly negatived.

Clause 7 disagreed to.

Clause 8 - Further appointments to inquiry panel

Jonathan Djanogly: I beg to move amendment No. 9, in clause 8, page 3, line 38, at end insert—
‘(1A)The power to appoint a member under subsection (1)(a) is exercisable only after consultation with the Chairman’.
The amendment follows the same theme as that discussed at great length when we debated the amendments on the allocation of duties to the commissioning Minister and the inquiries chairman. As such, and as this amendment was discussed by me to some extent previously, I shall be relatively brief.
The amendment would address a technical oversight. As I said, there is great inconsistency between the extent of chairman involvement when changing the composition of the inquiry panel. The Minister did not address that. To recap, under clause  8 the chairman must consent to any appointment that would increase the number on the panel, unless the Minister had originally foreseen that it would be increased. In such circumstances, only the chairman needs to be consulted. By contrast, where a vacancy arises in the panel, for whatever reason, the chairman has no involvement in selecting members to fill it.
Given that the Minister is involved in every other situation relating to the composition of the inquiry panel, we can only conclude that that lacuna has been overlooked. If there is a policy reason behind it, I would appreciate hearing the Minister’s explanation, because the need for some involvement of the chairman seems to be clear. The same argument arose in relation to both the independence, and so to the credibility, of the inquiry and the ability of the chairman and his panel to work as a cohesive team. The precise extent to which the chairman should be involved in appointing a new panel member to fill a vacancy is unclear.
The amendment would introduce the minimum requirement of consultation. In hindsight, we recognise some inconsistency with amendment No. 3, which proposed that the Minister must “seek the agreement of” the chairman on appointing the original members of the panel, and with clause 8(2)(b), which requires consent when making an appointment that would increase the number on the panel.
Unfortunately, the debate has not clarified matters. The only thing that has become clear is that there is little consensus about whether there should be consistency, never mind at which level the chairman should influence the decisions. I appreciate that the Committee will not want to cover old ground for a second time. However, I hope that it will recognise that some chairman involvement is required to fill the loophole relating to the appointing of new members to fill vacancies on the inquiry panel. That is particularly important given that the Bill as drafted allows the Minister to cause a vacancy on the panel to come about in the first place by terminating a panel member’s appointment at any time and for any reason.
 There is a small drafting defect in the amendment. As it stands, the chairman would also have to be consulted on the chairman’s appointment. That is clearly unrealistic. It would be superfluous if it applied to the incoming chairman, and it may be inappropriate or impossible if it applied to the outgoing chairman. The Committee needs to debate the amendment as if the chairman were excluded from the spectrum of new panel members for whom consultation with the chairman would be required. No doubt the Government could find the appropriate wording on Report.

Christopher Leslie: I understand the sentiment behind the amendment, but the advice that I have been given by my officials is that it is unnecessary, not least because it would duplicate the requirement already set out in clause 4(3), which reads:
 “Before appointing a member to the inquiry panel (otherwise than as chairman) the Minister must consult the person he has appointed, or proposes to appoint, as chairman.”
That subsection requires the Minister to consult the chairman before appointing any member to the inquiry panel. That applies to appointments made at any time, including further future appointments to the inquiry panel under clause 8. That is our understanding of what the hon. Gentleman is trying to achieve, so the amendment is not necessary because what it seeks to do is covered in clause 4(3).

Jonathan Djanogly: I thank the Minister for his explanation. I think that that covers my query, but I will go away and have a look at the Bill more carefully, and perhaps his office could do the same. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 ordered to stand part of the Bill.

Clauses 9 and 10 ordered to stand part of the Bill.

Clause 11 - Appointment of judge as panel member

Christopher Leslie: I beg to move amendment No. 33, in clause 11, page 4, line 31, leave out
‘obtain the consent to that appointment of’
and insert ‘first consult’.

Win Griffiths: With this it will be convenient to discuss Government amendment No. 34.

Christopher Leslie: These important amendments relate to clause 11, which is concerned with the appointment of judges as panel members and the ability of a Minister to appoint those panel members who possess the most relevant skills and experience and are most appropriate to undertake a specific inquiry. There was a lot of debate on the clause in the other place and changes were made, but the Government believe that the requirement ought to be for consultation with the Lord Chief Justice or the various serving heads of the judiciary.
The matter reaches further than consideration of just the impact on the judiciary and the administration of justice because, when appointing an inquiry panel, Ministers should be able to weigh up what is in the wider public interest. That depends on many factors, including the nature of the problem and the level of public concern. To be blunt, public inquiries can be more important than the judicial business demands that apply from time to time in the courts. For instance, the appointment of Lord Phillips as chairman of the BSE inquiry is an example of a case in which the wider public interest of investigating that crisis outweighed the loss of the Lord to the courts.
The role of the Lord Chief Justice, or appropriate colleague, in the appointment process is important and must be recognised, but a requirement for consultation is more appropriate than a right of veto. Although  consultation has been given a bad name by some, it is substantive and meaningful, and such a formal requirement to consult, which the amendments will restore and which was originally in the Bill, is a serious matter.
The Lord Chief Justice, or his equivalent, might express opposition to the appointment of a judge for several reasons, all of which have been mentioned in debates in the other place. He might, for instance, regard the impact of a judge’s absence from his regular duties for a prolonged period as leaving insufficient judicial resources to fulfil the work load; he might regard the individual judge selected as unsuitable for the task; he might feel that the judge should sit with other panel members rather than alone; or he might even regard the nature of the inquiry as unsuitable for any serving judge.
All of those are, of course, important objections that no one would want to deny and they would, no doubt, be spelled out by the member of the senior judiciary concerned. The Minister would have to do his or her best to meet those concerns and would have to consider the alternatives very carefully indeed. If the Minister nevertheless decided to go ahead with the appointment, he or she would have to give very good reasons to justify making that decision.
It is important that the Minister should ultimately have the power to make such a decision if it is really necessary. That is the key issue. In future, there may well occur an event of such seriousness, causing such widespread public concern, that there is an overwhelming public interest in appointing a judge to investigate it. Such overwhelming public interest can sometimes outweigh all other factors. No one should have a veto on an individual judge’s view. The Government believe that, as currently drafted, the clause might work against a judge’s right to remain truly independent. It should be for the individual judge to say yes or no to an appointment, not the Lord Chief Justice or the Minister.
It would be odd to give a veto to the head of the judicial profession only and not to others. If one considers the clause in the wider context, that particular requirement on the Lord Chief Justice would look somewhat strange. Judges are certainly not the only people who could chair inquiries. As the hon. Member for North-East Hertfordshire said just this morning, an inquiry chairman could well be a member of a professional body responsible for the standards and reputation of the profession, such as an eminent doctor, engineer or academic figure, yet the Bill would not allow the heads of those professions formally to veto the offer of an appointment before it has been made.
We recognise the importance of taking the views of the Lord Chief Justice or another senior judge on  board—we would take that very seriously—but the requirement should be for consultation, not for that veto.

Jonathan Djanogly: We regret that the Government felt inclined to table the amendment, which will undo the good work achieved in the other place. I remind the Committee that the original draft of the Bill required consultation with the Lord Chief Justice or another relevant leading judge only when a Minister required a judge to serve on an inquiry panel.
On Report, Lord Cullen and Lord Chief Justice Woolf spoke eloquently in support of amendments tabled by Lord Kingsland and Lord Goodhart to require the consent of the Lord Chief Justice. The Minister, Baroness Ashton, refused to accept the Lords’ convincing arguments, but the other place divided on the matter, and was in favour of the amendment.
The Conservative Opposition still stand strongly opposed to Government amendments Nos. 33 and 34. The Minister will tell me if I am wrong, I am sure, but he seemed a little circumspect in his proposal of them. Clause 11 should stay as it stands for four main reasons. First, inquiries are inherently political, and the Minister could use his influence to place a judge in a position that could jeopardise the judge’s independence and further the former’s interests. Indeed, the hypocrisy of this Government is interesting. They argue for the abolition of the Lord Chancellor in order to ensure the separation of powers, while giving the Executive carte blanche over the involvement of judges in inquiries.
Lord Woolf recognised an extension to this issue. He stated:
“in recent history there have been incidents where the question of the impartiality of the judge has been unfairly impugned. Such allegations could of course still be made if the consent of the Lord Chief Justice is obtained. However, I suggest that the allegations would have less force if it was known that the Lord Chief Justice was primarily responsible for agreeing to that appointment. I suggest that the desirability of that being the position is particularly important if the Government’s activities are involved in the inquiry.”—[Official Report, House of Lords, 7 February 2005; Vol. 669, c. 648.]
Secondly, the Government’s amendments are not consistent with the concordat agreed between the Secretary of State for Constitutional Affairs—the Lord Chancellor—and the Lord Chief Justice. The Minister said that it would be unusual to give a veto to the head of the legal profession, but that is not reflected in the deal that his Government have just arranged with the judiciary. The concordat, of course, is now reflected in the Constitutional Reform Bill. The concordat states:
 “The Lord Chief Justice will be responsible for the posting and roles of individual judges, within the framework set by the Secretary of State”.
Given the extensive powers given to governmental officers in the context of inquiries under this Bill, it is at least arguable that an inquiry is a
“framework set by the Secretary of State”.
As such, the concordat should apply to the posting of judges to inquiry panels, and the Lord Chief Justice should be able to consent or object to the use of a judge in that way.
Thirdly, each judge may be aware of his personal schedule, but he will not be informed of the resources and business needs of the court system as a whole. Only the Lord Chief Justice will be in a position to see the possible appointment of a judge to an inquiry panel in the context of the working of the court system as a whole and its effects on the administration of justice.
Finally, the tradition and culture of this country’s judiciary is such that it may be difficult to turn down a ministerial request to join an inquiry panel. Lord Fraser said that
“it is much easier for whoever is the head of the court to make that point on their behalf.”—[Official Report, House of Lords, Vol. 669, c. 648.]
The Conservative Opposition’s view is shared by the Public Administration Committee. The conclusion of its recent report “Government by Inquiry” stated:
 “We agree with Lord Woolf’s concerns over the current provisions in the Inquiries Bill and recommend that decisions about the appointment of judges to undertake inquiries should be taken co-equally by the Government and the Lord Chief Justice or senior law lord.”
We ask the Committee to resist the Government’s amendments and ensure that the Lord Chief Justice, or other relevant leading judge, will have the final say on whether his judges may be used in a ministerial inquiry.

Alistair Carmichael: The hon. Gentleman is correct to say that there is an issue about the separation of powers. He referred to the passage from the Public Affairs Committee report that I originally intended to bring to the Committee’s attention. I would like the Minister to give us a good reason why he disagrees with the terms of the Public Affairs Committee report.
I will not rehearse what the hon. Member for Huntingdon said, but the Minister’s argument about why a senior judge might not necessarily want to release a judge was on the basis of the weight of business given to the part of the judiciary for which he was responsible. I can envisage situations in which it would be desirable to appoint an English judge to head an inquiry in Scotland or, as has happened in the past, a Scottish judge to investigate a matter in England—the obvious example is Lord Cullen, who headed the Paddington rail crash inquiry. That would certainly be possible under the Bill. In a situation closely associated  with the legal system of one jurisdiction within the United Kingdom, it would be desirable that a judge should be taken from another jurisdiction within the United Kingdom to provide some distance for such an inquiry.
Surely the Minister would accept that if a Minister at Westminster is to call on a judge from Scotland, he should have the consent of the Lord President before making that appointment. Merely to consult him is not sufficient.
Mr. Leslieindicated dissent.

Alistair Carmichael: The Minister shakes his head; he mouths “Why?” It is because no Minister in Whitehall can possibly be aware of the full extent of the business that is before a judge in Scotland. He has no ministerial responsibility for the administration of the business that is normally carried out by a judge in those circumstances. He does not know the background, which would be a barrier, and he has no direct control over that judge. If we were simply dealing with English Ministers appointing English judges and Scottish Ministers appointing Scottish judges, I might have more sympathy for the Minister’s argument. However, that is not so. There is potential for intra-jurisdiction transfer and in such circumstances it is necessary to have more than consultation. The head of the judiciary in whichever part of the United Kingdom happens to be affected ought to be prepared to give consent. There needs to be more than mere consultation.

Christopher Leslie: I hear what hon. Members on the Opposition Benches have said. There is no presumption of a judicial chair of an inquiry across the board, but the amendments relate to circumstances where it is felt that a judge would be better placed to chair a particular inquiry.
As for Westminster Ministers not knowing or being aware about the business needs in the Scottish legal jurisdiction—or, in depth, in England or Northern Ireland—I reiterate the point that I made before, which is that public inquiries, by the nature of their importance to the public interest, sometimes overrule the individual business need issues in the day-to-day running of the courts. I know that that is a difficult judgment to make, but it is important to underline the fact that sometimes having the right person to chair a public inquiry comes first.

Alistair Carmichael: I accept the Minister’s point about the wider public interest, but if there is a conversation between a Minister at Westminster and the Lord Chief Justice, and the Lord Chief Justice says, “I can’t afford to release that judge”, the Minister in Whitehall can say, “We will provide you with money to employ so many other temporary judges”, or whatever the equivalent is, south of the border. If the Minister is having a conversation with the Lord President in Scotland, and the Lord President makes the same objection, what does he say? He does not fund the Lord President’s Department.

Christopher Leslie: This is dancing on the head of a pin. Ministers, such as the Advocate-General and others, have an interest in that area, and we have relations with the Scottish Executive as well, so there are ways round that. Indeed, the hon. Gentleman’s point about having a veto is not proven. The necessary consultative process would reveal whether there was a problem with the business needs in the judiciary in either jurisdiction, and that might enable Ministers to react through the consultative process by providing a solution to the business needs while a judge was used on invitation to chair an inquiry.
It is important to emphasise that we are talking about inviting a judge to chair an inquiry, not forcing them. The sense that Ministers are somehow able to undermine the independence of a judge is slightly peculiar, to say the least. All our judges are of the highest standing and repute and would not take on inquiries if they felt that they were being used, as some would suggest. Judges will be able to decide for themselves whether to chair inquiries and neither the Lord Chief Justice nor the Minister should be able to force a judge to do so or have a veto on a judge’s involvement.
The hon. Member for Huntingdon mentioned that the Lord Chief Justice made various comments on the concordat during the progress of the Bill in the other place, but I emphasise that the appointment of judges to inquiry panels did not form part of the discussions with the Lord Chief Justice that led to the concordat. We do not believe that the concordat was intended to cover inquiry panel appointment issues.
There are plenty of safeguards for protecting judicial independence. The notion that we would want to undermine the independence of the judiciary is wrong. It would be up to a judge to make the choice. We know that the Constitutional Reform Bill, quite separately, places an unqualified duty not just on the Lord Chancellor but on all other Ministers to uphold the continued independence of the judiciary and to place a specific duty on the Lord Chancellor to consider the need to defend that independence in everything that he or she does. That demonstrates in new ways the Government’s commitment to preserving judicial independence and the need to defend that independence. For those reasons, because there are other safeguards outside the Bill and because a veto is not necessary in this judicial field, I hope that the Government amendment will be accepted.

Question put, That the amendment be made:—

The Committee divided:  Ayes 6, Noes 3.

NOES

Question accordingly agreed to

Amendment made: No. 34, in clause 11, page 4, line 33, leave out
‘whose consent must be obtained’
and insert ‘to be consulted’—[Mr. Leslie.]

Clause 11 ordered to stand part of the Bill.

Clause 12 - Assessors

Jonathan Djanogly: I beg to move amendment No. 10, in clause 12, page 5, line 17, leave out subsection (4) and insert—
‘In deciding whether or not it is in the public interest to appoint an assessor, the Chairman must have regard to the need—
(a)to ensure that the panel has available to it the necessary expertise to undertake the inquiry; and
(b)to avoid incurring unreasonable cost.’.
The Conservative peers originally proposed this amendment as they felt that the Bill placed too much stress on costs to the detriment of other factors such as expertise. The Government addressed this by removing the reference to costs and replacing it with the current reference to expertise. That was welcomed at the time by the Opposition. However, our amendment today underlines the need also to consider costs. This is not the most crucial amendment of the afternoon, but why should the subsection, which concerns the regard chairmen must have when appointing assessors, address only expertise or costs? Why can it not address both?

Christopher Leslie: Subsection (4) of this clause is very important, because it contains what is, in essence, a definition of the role of an assessor. An assessor is a person who has
“expertise that makes him a suitable person to provide assistance to the inquiry panel”.
If one removed that subsection, as the amendment would do, the Bill would give no indication of the requirements for being an assessor. I am not, per se, opposed to either the Minister or the chairman considering the cost of appointing an assessor. I am sure both will do so. One of the main aims of the Bill is to enable inquiries to reach conclusions and make recommendations in reasonable time and at a reasonable cost.
The hon. Gentleman has already alluded to the fact that earlier drafts of this clause included a specific requirement obliging the chairman to have
“regard in particular to the cost”
when appointing an assessor. But concerns were raised in the House of Lords that too much emphasis was placed on cost at the expense of other factors. An amendment identical to this one was proposed in its place, to include the balancing factor of a need for expertise, but my noble Friend Baroness Ashton found another satisfactory solution, which was to remove the subsection completely. That ensured that the chairman would still have to make a decision that took into account all the relevant factors, but that cost was not highlighted in particular.
I also have a concern about subsection (a) of the amendment, because it places an obligation on the chairman to ensure that the panel has the necessary expertise. Keen readers of the Bill will recall that clause 9(1)(a) already places that obligation firmly on the Minister. It would therefore be confusing to create a second explicit obligation and to place it on the chairman. For that reason, I ask the hon. Gentleman to withdraw his amendment.

Jonathan Djanogly: I hear what the Minister says, and I do not intend to die in a ditch on this clause. Therefore, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 ordered to stand part of the Bill.

Clauses 13 to 15 ordered to stand part of the Bill.

Clause 16 - Power to convert other inquiry into inquiry under this Act

Question proposed, That the clause stand part of the Bill.

Jonathan Djanogly: The power to convert one inquiry into another inquiry under this proposed legislation is important. It was discussed at length in the other place. Lord Kingsland noted:
 “After the Bill became an Act, it would give a power to the Minister, in effect, to close down ongoing inquiries and replace them with inquiries under the Bill. That would give rise to two issues, one of which is far more important than the other.
The first is that it would provide a new procedure to an ongoing inquiry. We could see the force of doing that, if formal procedures were not proving to be satisfactory in dealing with the matter under review. Our other concern was that an inquiry might be closed down and replaced in order to get rid of members who were saying and doing inconvenient things and replace them with placemen.”—[Official Report, House of Lords, 8 February 2005; Vol. 669, c. 699.]
The Government answered those concerns by requiring consultation with the chairman. However, we still have some worries.
The Bill has a retrospective effect, and I ask the Minister why that is necessary—and if it is necessary, it should occur only in the most extreme circumstances. Also, a Minister can convert an inquiry and change its panel and terms of reference, or even terminate it. Apart from there being too much ministerial involvement in that, it must go against the legitimate expectations of the chairman in starting the inquiry. Finally, is starting a new inquiry an alternative?

Christopher Leslie: To answer that last point, the alternative of starting a fresh inquiry would exist, but there may be good reasons why one would want to convert an existing inquiry into one that had the powers granted to it by this legislation—for instance, the reason of not wanting to lose valuable evidence sessions that have previously been heard. This clause is intended specifically to enable Ministers to convert an existing inquiry into one that has the extra powers in this  legislation. The ability to convert could be helpful in providing an inquiry panel with formal powers that are valuable to the effectiveness of its work. For instance, as Lord Fraser noted in the other place, conversion could have provided him with a valuable power to require the production of evidence in the Holyrood inquiry that he chaired, and he would have liked to have had that.
The power can be used to convert inquiries set up before or after this legislation comes into force; however, it should be emphasised that by virtue of clause 45 any inquiries currently under way can continue unchanged after the Bill comes into force. The Government have no plans to convert any existing inquiries, but we cannot rule out the possibility of doing so if an inquiry panel considers that that would beneficial. The clause contains these wide provisions in case they are needed in the future.
A Minister might convert an inquiry provided that he is satisfied that the subject matter of the original inquiry falls within the defining scope of clause 1(1)(a) and (b). The person who caused the original inquiry to be held must consent to the conversion, and the chairman must also be consulted. The Minister is required to advise Parliament or the relevant Assembly that an inquiry has been converted, and to provide the usual statement required under clause 6 about the terms of reference and appointments to the panel. The provision is sensible. We are taking the Bill through its legislative stages precisely because we feel that there are extra powers and scope that we can give to enhance the work of inquiries. It would therefore be sensible and prudent to allow for the conversion of inquiries in that way. I hope that the clause will stand part of the Bill.

Question put and agreed to.

Clause 16 ordered to stand part of the Bill.

Clause 17 ordered to stand part of the Bill.

Clause 18 - Evidence and procedure

Jonathan Djanogly: I beg to move amendment No. 19, in page 8, line 34, at end add
‘(b)the fact that any person or organisation who may have cause to apprehend the possibility of criticism in course of or as a result of the proceedings may reasonably wish to be legally represented at the inquiry’.
We continue to steam through the clauses of the Bill. This is an important issue, which was discussed at some length in the other place, and which relates to legal representation if there is a risk of criticism during the inquiry. It might be helpful if I explained where the phraseology of the amendment comes from.
On 5 February 1998, a document was produced by the Phillips inquiry on BSE, under the signature of Sir Nicholas Phillips, as he then was. The following words are drawn from his closing paragraph, in which he describes the protection of individual interests and discusses the role that lawyers may perform. He says that the first stage of the inquiry may be devoted  exclusively to obtaining evidence of fact, but that then one turns to the point where witnesses or others face criticism. He states:
“At this point, those who are invited to answer potential criticism may reasonably wish to be legally represented in order to protect their interests. Indeed, it may well be that, even before this stage, individuals may have cause to apprehend the possibility of criticism and wish to be legally represented. If a Department at any stage forms the view that an individual ought to have independent legal assistance, it is likely to be proper and desirable for the Department to fund such assistance. Equally it will, at any stage, be open to any individual to ask the Inquiry to recommend the funding of obtaining legal assistance. It will, of course, be for the inquiry to decide what part, if any, a legal representative will play in the hearings themselves.”
The Committee will see that the amendment draws heavily on the sentence
 “It may well be that, even before this stage, individuals may have cause to apprehend the possibility of criticism and wish to be legally represented.”
In the other place, Lord Howe of Aberavon said:
 “I emphasise that the right to legal representation does not consist simply of having someone stand up and spout for you; nor does it consist simply of having someone sit beside you, having given you preliminary advice, and holding your hand but not being heard. At the other extreme, it does not mean the right for your legal representative to reach out for unrestricted verbosity and prolixity.”
What marvellous use of language. He continues:
 “However, it does embrace the right to advice, the right to presence before the inquiry and the right to represent, and be heard on behalf of, the individual so far as is necessary. It is a question of the highest possible importance in the context of inquiries as a whole.”—[Official Report, House of Lords, 19 January 2005; Vol. 668, c. GC267]
I would also like to point out the Council on Tribunals report, which stated:
 “It should not be assumed that hearing legal representatives will necessarily add significantly, or at all, to the length of the inquiry, provided the inquiry itself retains overall control. Opening statements and the like from lawyers can help to distil issues and eliminate misunderstandings, and may also enhance fairness. Oral testimony can give ... a better understanding of the matters under the inquiry’s consideration, and may assist in allaying public concerns. Being taken through evidence in chief can put a witness at ease, enabling him to give of his best when being questioned by the inquiry. Cross-examination of other witnesses may sometimes be the most effective way of resolving conflicts of evidence. Re-examination can be a much quicker way of clarifying outstanding points than the submission of additional written statements. In short, although legal representation should not be regarded as an automatic right, and the inquiry should prevent any abuse of the opportunity to be heard, it may be counterproductive to start from the position that legal representations will only be heard exceptionally. The inquiry should be ready to exercise its discretion in favour of hearing legal representatives and oral testimony and allowing cross-examination whenever it seems appropriate.”
Lord Howe went on to say:
 “I repeat that it may be counterproductive to start from the position that legal representatives will be heard only exceptionally. I would strengthen the position myself by saying not merely that it ”may not” be counterproductive; it would be so.”—[Official Report, House of Lords, 19 January 2005; Vol. 688, c. GC271.]
Those are strong words from the Lords on this issue, which is why we thought it important to reintroduce the amendments. I am interested to hear the Government’s comments on them.

Paul Tyler: I have listened with care to the hon. Gentleman. As I said earlier, I am not a lawyer. Indeed, as I said in a statutory instrument Committee last night, my usual approach is the Shakespearean one: I cannot remember which Shakespearean character it was, but one of them basically said, “Hang the lawyers.” No doubt my hon. Friend the Member for Orkney and Shetland disagrees.
My experience of inquiries has always been non-legal; I have appeared at various inquiries and I have sought to help constituents at inquiries. I am not sure how compatible the amendment is, in the way in which it is written, with the subsection it seeks to amend, but no doubt the Minister can deal with that. My concern about the amendment is that the presumption should be that legal representation is not necessary, and that anything that pushes too far in the direction of making legal representation not obligatory, but encouraged, is unhelpful.
On Second Reading, I mentioned the inquiry that was eventually set up into the Lowermoor water poisoning episode, which took place just before water privatisation. No doubt that was why the Government of the day were so anxious to avoid an inquiry. What was ideal about that inquiry was that there was no legal representation. As a result, it was much less formal, much less expensive and much more effective. There should not be a presumption that legal representation should be encouraged, or that it would improve the quality of exchanges or the presentation of the information.
I shall listen with care to the Minister’s response, but my hon. Friend the Member for Orkney and Shetland and I feel that to pass the amendment would mean to employ the nanny state excessively.

Christopher Leslie: How interesting it is, to use the description of the hon. Member for North Cornwall, that the nanny state should appear in the form of an amendment tabled by the hon. Member for Huntingdon.
I understand why the hon. Member for Huntingdon advocates the amendment, but it is not necessary. It is an interesting spending commitment on legal costs from the Conservative party, on which it might be worth putting a figure at some point in order to send a little note to the shadow Chancellor of the Exchequer in case he is worried about spending commitments made by his Front-Bench colleagues.
That point aside, I think that the hon. Member for Huntingdon is trying to incorporate one of the Salmon principles into the legislation. There was general agreement in the other place that accepting the amendment would take inquiries in the wrong direction. Indeed, their lordships were concerned that it could lead to more costly proceedings. The principle that the amendment would put into the Bill has been cited by commentators as one of the main factors increasing the cost and length of inquiries. The Public Administration Committee recommended that the time had come to reformulate the Salmon principles in general and to ensure fairness
“whilst minimising the adversarial, legalistic element of inquiries.”
Several distinguished former inquiry chairmen in another place echoed those arguments.
The nub of the issue is that, although there will be cases when people need to be represented, it is important to remember that inquiries are not trials, are not about civil or criminal liability and should not be adversarial. Decisions about representation are rightly for the judgment of inquiry chairmen, but if we introduce general principles about entitlement to legal representation, we need to consider carefully whether they are at odds with the role of inquiries as inquisitorial, not adversarial, processes. In general, some substantial bodies might not need to have recourse to public funds to represent their views at inquiries, but the amendment might break with that and place extra cost on the taxpayer, and it is not necessary.
The Government amended clause 18 in another place to ensure that the chairman must act fairly throughout the proceedings, and that presages some of the changes that we might be able to make to the procedure rules that will be brought forward under a statutory instrument in the usual way, when we might be able to create a balance between fairness and expediency that is more closely and precisely defined so that the chairman can be better informed about guidance on such issues. For those reasons, it would not be wise to accept amendment No. 19. It was not accepted in the other place and we should not accept it here either.

Jonathan Djanogly: This is not a question of the nanny state. The amendment is a way to improve representation at inquiries. As I said, legal representation can often reduce the time taken by inquiries or other procedures in which lawyers can become involved. A good lawyer will facilitate and speed up a process, not delay it—as the popular press might have us say.
Cost estimates should include the likely costs of such legal representation. That will be consistent with what I said earlier, but it will not necessarily increase costs as a result. I disagree with what has been said. However, this is not an issue that I intend to press to a Division, so I beg to ask leave to withdraw the amendment

Amendment, by leave, withdrawn.

Clause 18 ordered to stand part of the Bill.

Clause 19 ordered to stand part of the Bill.

Clause 20 - Restrictions on public access etc.

Jonathan Djanogly: I beg to move amendment No. 21, in clause 20, page 9, line 24, leave out
‘either or both of the following ways’
and insert ‘the following way’.

Win Griffiths: With this it will be convenient to discuss the following amendments: No. 22, in clause 20, page 9, line 25, leave out paragraph (a).
No. 23, in clause 20, page 9, line 29, leave out ‘notice or restriction’.
No. 24, in clause 20, page 9, line 32, leave out ‘Minister or’.
No. 25, in clause 20, page 10, line 8, at end add—
‘(6)In proceeding under this section, the Chairman must start from the presumption that public access should not be restricted.’.

Jonathan Djanogly: We now come to restrictions on public access. The amendments relate to the imbalance of power between the Minister and the chairman. We believe that the chairman would be more independent and have more intimate knowledge of the inquiry if our proposals were accepted. Our position has been strongly supported by the Public Administration Committee, the Joint Committee on Human Rights, the Lord Chief Justice and many other Law Lords, as well as the Finucane family, the Committee of International Human Rights of the Association of the Bar of the City of New York and many others.
It was pointed out by Lord Kingsland in the other place that clause 20
“will retain iron control over all matters concerned with the disclosure and publication of evidence. For example,—
under clause 20—
the Minister can issue a restriction notice at any time, before or during an inquiry, as to whether the hearing should continue to be held in public, whether material advanced and adduced in evidence should be published, and on a whole range of other matters, as long as he considers it to be necessary in the public interest.”—[Official Report, House of Lords, 9 December 2004; Vol. 667, c. 1011.]
I agree with Lord Kingsland that that is a draconian power, allowing the Minister to second-guess the judgment and discretion of the man on the spot who is the chairman of the inquiry.
Amendment No. 21 is the first of several amendments to the clause that we regard as important. One of the two themes of the Opposition’s approach to the Bill has been the lack of balance between the powers of the Minister and the powers of the chairman in respect of any particular inquiry. This lack of balance is illustrated by clause 20, which gives rise to two sorts of restriction instruments—a restriction notice, which is to be issued by a Minister, and a restriction order, which is to be made by the chairman of an inquiry committee. We have no difficulty with the powers that clause 20 grants to the chairman. These are traditional powers and powers that are rightfully and sensibly granted to somebody who is in charge of a public inquiry.
However, we do not believe it appropriate for the Minister to have any of the powers that are comprised in and implied by a restriction notice. These powers would give a Minister the authority to issue notices restricting, for example, public access to an inquiry’s proceedings, to evidence given to an inquiry or to documents produced to an inquiry.
The essence of the role of a chairman of an inquiry is to balance considerations of national security, international relations and comity, economic interests both national and international, and questions of  commercial secrecy against the public interest in having a complete picture of the subject matter of the inquiry itself. In respect of any individual matter which gives rise to one or other of these considerations, the chairman of the committee has to make a balancing decision. For example, he has to balance the interests of national security against the interests of the individual, whether a witness or someone under investigation, to have the matter properly exhibited to the general public.
We have no difficulty with the chairman being charged with these responsibilities, but we do not see how the Minister can possibly place himself in the same situation as the chairman. The public inquiry has been set up by the Minister to investigate a matter. The Minister then stands back while the inquiry conducts its business. At any stage of the inquiry the Minister is simply not qualified to make these balancing judgments. He appointed the chairman to make these judgments in the interests of the public.
If the Minister is informed by his Department that on day 42 of a public inquiry an important national security issue was raised, he is almost bound to err on the side of giving that national security issue undue weight because he has no feel for the circumstances.
So, in short, these amendments remove the right of a Minister to issue restriction notices while preserving the chairman’s right to make restriction orders.
The Public Administration Committee’s report said:
 “Lord Salmon’s observation on public versus private evidence gathering was succinct: ‘Secrecy increases the quantity of the evidence but debases its quality’”
and further commented that the Council on Tribunals considered that
 “In principle, it seems right that an inquiry into a matter of public concern should itself be conducted in public, unless there is a strong public interest in the inquiry, or part of it, being held in private for reasons such as national security ... Aside from any other consideration, public hearings go a long way towards reassuring the public that the subject matter of the inquiry has been fully investigated and that there has been no ‘cover-up’”.
However it went on to suggest that on certain occasions there might be advantages in holding inquiries in private as long as its report was published:
 “Sometimes it may be easier to elicit the truth when questioning is not conducted in the full glare of publicity”.
In their response to the Select Committee’s recommendation, the Government noted that they:
“cannot accept the Committee’s recommendation, because it does not agree with the Committee’s premise in paragraph 88 that in the Bill the obligation of public access is subordinate to the power of restriction. There is a presumption of public access in the Bill.”
Will the Minister justify how that is so, because I cannot see it?

Alistair Carmichael: It is a funny old world when you find the Tories promoting openness and scrutiny of Government decisions and a Labour Government denying them. I presume that the Minister is going to deny them. I wait with some interest to be shown to be wrong.
On this occasion I am broadly in sympathy with the amendment and the remarks of the hon. Member for Huntingdon. There will be times when it will be necessary for information to be excluded from the public part of a public inquiry, but that decision needs to be made by the chairman of the inquiry if the inquiry is to be seen as open, transparent and independent of the Government. If the Minister insists on providing a power—similar to a public interest immunity certificate, frankly—for people not to co-operate with an inquiry by providing information, the independence of the inquiries in question will be fundamentally compromised and we will have a very flawed beast. The Government can do better, and the amendments tabled by the hon. Member for Huntingdon would constitute a significant improvement.

Christopher Leslie: It is important at the outset to understand what clause 20 is designed to do. Quite properly, it defines the circumstances in which restriction notices can be agreed by Ministers or restriction orders can be agreed by inquiry chairmen. It allows Ministers to consider the wider public interest and whether the inquiry should have private sessions. However, we need to remember that, even if there are restrictions on public access, nothing can prevent an inquiry from having all the information before it. That is especially so if it is in private session. It will be able to have the full facts—the full information—before it to determine the truth and reach conclusions. An inquiry may be in private session for national security reasons, but it will have full access to the facts and will therefore be able to reach a truthful conclusion. That may be so obvious that it has not been stated so far. We are talking about public access to inquiries versus private sessions, not about restricting what inquiries can consider.
Amendment No. 25 is the most straightforward amendment in the group. It would introduce a general presumption of public access, but that presumption is already in the Bill. Clause 19 already makes it clear that the starting point for any inquiry is full public access to all proceedings and evidence. Clause 20(3) makes it clear that restrictions can be imposed only when the criteria in that clause are met. The presumption is that public access should not be restricted. The onus is on the Minister or the chairman to satisfy themselves that certain tests are met before they issue restrictions.

Paul Tyler: Is the Minister giving the Committee an explicit assurance that every clause of the Bill is fully in accordance not only with the letter but with the spirit of the Freedom of Information Act 2000?

Christopher Leslie: Yes. I think that later clauses in the Bill deal with freedom of information arrangements, because inquiries, not being public bodies, might not want to be and should not be subject to freedom of information requests during the inquiry process. However, I think that we made amendments on that issue in the other place, and we might come to those aspects later. In general, I think that we have said—I stand to be corrected—that after an inquiry has  finished, the records and archives of the inquiry will be subject to the normal freedom of information request arrangements and exemptions.
Restrictions on public access would not be ordered lightly by chairmen or by Ministers in restriction notices. Clause 20(4) sets out the factors that must be taken into account when determining whether the public interest test has been met. It makes it clear that the Minister or chairman must always weigh the reasons for restriction against the extent to which issuing the restriction
“might inhibit the allaying of public concern”.
That will usually be a strong argument to retain public access.
Amendments Nos. 21 to 24 would give the Minister setting up an inquiry no role whatever in deciding the form of the inquiry and the terms of public access. When a Minister is setting up an inquiry, they must be sure that they will not endanger witnesses or put national security at risk. Those are very important considerations, and public access or private hearing can make an important contribution on those two points.
A Minister has to be able to set up an inquiry in a way that will allow it to get to the truth most effectively. Decisions about privacy must be part of that process. As has been said in the other place, there are cost implications. For example, Ministers have established a number of recent health inquiries partially on the basis of private hearings, because it meant that they could operate more efficiently, streamline procedures and get to the truth more quickly. I think that in a judgment about the Allitt inquiry, Lord Bingham said:
“It is an undoubted truth that a statutory Inquiry conducted in public would last longer and cost more and the money so spent would of course otherwise be available for the care of patients. This was pre-eminently a matter for the judgment of the Secretary of State.”
In rare cases in which large portions of the information would be sensitive, it is much better to have a single decision about public access right at the start—which can of course be challenged—rather than numerous applications for public interest immunity throughout the inquiry, which can be very protracted and cause delays.
The powers that are sought in clause 20 are not new; existing legislation, including the Children Act 1989 and the Police Act 1996, has explicit powers for Ministers to hold an inquiry or part of an inquiry in private. What is new in the Bill is the set of qualifications on the use of those powers. In fact, for the first time we set out the reasons why a Minister may hold an inquiry in private.
The Bill in many ways restricts Ministers’ current powers in that respect. It creates a clear structure in which decisions about public access and privacy must be made. Any attempt to use the clause to impose improper or unreasonable restrictions could, and undoubtedly would, be challenged through judicial review. The clause is well framed and details the  considerations that Ministers and inquiry chairmen would have to make. I hope that we can retain it as it stands and reject the amendments.

Jonathan Djanogly: I was pleased to hear the hon. Member for Orkney and Shetland accepting the openness of the Conservative party. That was very nice. I agree with what he said on that issue and—he will be pleased to know—with his comments generally.
The Minister maintained that there was a presumption of public access. He said that it permeated the clauses of the Bill. I need to go away, weigh up his words and consider to what extent they are adequate. I will not press the amendment to a Division. This is an issue to which we might want to return later—unless my Liberal Democrat colleague explains to me that he has assessed the Minister’s words.

Alistair Carmichael: No.

Jonathan Djanogly: In that case, I will stick with that approach at the moment. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 ordered to stand part of the Bill.

Clauses 21 to 23 ordered to stand part of the Bill.

Clause 24 - Risk of damage to the economy

Alistair Carmichael: I beg to move amendment No. 40, in clause 24, page 11, line 44, leave out from ‘in’ to end of line 2 on page 12 and insert
‘avoiding a risk of damage to the economy outweighs the public interest in the information being revealed.’.
I do not think that I need detain the Committee unnecessarily on this amendment, because having assessed in part the Minister’s comments on the previous group of amendments, I am fairly confident that he will want to accept this amendment.
We are dealing with whether the cart or the horse comes first. The provision as it currently stands requires the panel to be satisfied that the public interest in the information that is being revealed outweighs the public interest in avoiding a risk of damage to the economy. That is to say that the disclosure outweighs the restriction. In fact, we would say—the Minister says that there is a presumption in favour of disclosure—that the disclosure should be the status quo or the presumption that requires to be rebutted. It is as simple as that, and I cannot imagine for the life of me why the Minister would wish to oppose the amendment.

Christopher Leslie: Clause 24 is designed to allow for cases in which only the Treasury, Bank of England or the Financial Services Authority will have access to the full background about why public disclosure of a particular piece of information risks seriously damaging the economy of the United Kingdom.
A European Community law bar prevents regulators of financial services from sharing certain information. In some cases, that will prevent the Treasury, Bank of England or the FSA from sharing the background information with the panel. That means that the panel would be making an assessment of the risks of disclosing a particular piece of evidence without the full picture available to them. For that reason, the balancing test in clause 24 needs to be more favourable to restricting disclosure. The inquiry panel would often be assessing the public interest while unaware of the true extent of the likely damage to the economy. Therefore, it is right that information should be released by the inquiry panel only when the public interest in disclosure clearly outweighs public interest in avoiding the risk of damaging the economy.
 To answer the hon. Gentleman, I can certainly give the assurance that the tripartite authorities would not seek to make an application under clause 24 where the  information at hand would be disclosed if an application to see it were made under the Freedom of Information Act 2000. I hope that that helps him in his consideration of this matter and that he will withdraw the amendment.

Alistair Carmichael: The Minister is a big disappointment to me; perhaps I need to be more imaginative when I anticipate his arguments. That said, this is not something on which I want to delay the Committee further. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 ordered to stand part of the Bill.

Clause 25 ordered to stand part of the Bill.
Further consideration adjourned.—[Bridget Prentice.]

Adjourned accordingly at nine minutes to Five o’clock till Thursday 24 March at twenty-five minutes past Nine o’clock.